What was the outcome of Tenancy Tribunal case 5120368?

The tribunal order states: Rick Kerse, Sally Kerse, Victoria Kerse must pay Laurence Pope And Aaron

How much money was awarded in case 5120368?

Cleaning: $840.00 awarded to landlord; Property Damage: $1,500.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $27.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Installation Of 3 Light Fittings: $533.31 awarded to landlord; Plumber Services (Labour Only: $2,775.81 awarded to landlord; Rent Arrears: $4,285.71 awarded to landlord; Rubbish Removal: $1,860.00 awarded to landlord; Rubbish Removal: $1,759.50 awarded to landlord; Skip Bin Hire: $714.00 awarded to landlord

What type of tenancy dispute was case 5120368?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5120368?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12097163-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5120368?

The tribunal order states: Rick Kerse, Sally Kerse, Victoria Kerse must pay Laurence Pope And Aaron

How much money was awarded in case 5120368?

Cleaning: $840.00 awarded to landlord; Property Damage: $1,500.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $27.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Installation Of 3 Light Fittings: $533.31 awarded to landlord; Plumber Services (Labour Only: $2,775.81 awarded to landlord; Rent Arrears: $4,285.71 awarded to landlord; Rubbish Removal: $1,860.00 awarded to landlord; Rubbish Removal: $1,759.50 awarded to landlord; Skip Bin Hire: $714.00 awarded to landlord

What type of tenancy dispute was case 5120368?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5120368?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12097163-Tribunal_Order.pdf.

35 Matakana Valley Road, Matakana, RD5, Auckland 0985 Tenancy Tribunal Case 5120368 — Rent arrears

Claims and awards in Tenancy Tribunal application 5120368 — net $7,768.33 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 6 March 2025	$4,285.71		Rent arrears to 6 March 2025
Installation of 3 light fittings	$533.31		Installation of 3 light fittings
Cleaning of house and final rubbish removal	$1,860.00		Cleaning of house and final rubbish removal
Cleaning and kitchen reinstallation	$840.00		Cleaning and kitchen reinstallation
Skip bin hire	$714.00		Skip bin hire
Labour for rubbish removal	$1,759.50		Labour for rubbish removal
Plumber services (labour only	$2,775.81		Plumber services (labour only
Filing fee reimbursement	$27.00		Filing fee reimbursement
Exemplary damages: Unlawful entry by landlord- s		$1,500.00	Unlawful entry by landlord- s
Exemplary damages: Breaching duties on receipt		$1,500.00	Breaching duties on receipt
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$12,795.33	$3,027.00
Net award	$7,768.33
Total payable by Tenant to Landlord	$7,768.33

Claims and awards in Tenancy Tribunal application 5120368 — net $7,768.33 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 6 March 2025	$4,285.71		Rent arrears to 6 March 2025
Installation of 3 light fittings	$533.31		Installation of 3 light fittings
Cleaning of house and final rubbish removal	$1,860.00		Cleaning of house and final rubbish removal
Cleaning and kitchen reinstallation	$840.00		Cleaning and kitchen reinstallation
Skip bin hire	$714.00		Skip bin hire
Labour for rubbish removal	$1,759.50		Labour for rubbish removal
Plumber services (labour only	$2,775.81		Plumber services (labour only
Filing fee reimbursement	$27.00		Filing fee reimbursement
Exemplary damages: Unlawful entry by landlord- s		$1,500.00	Unlawful entry by landlord- s
Exemplary damages: Breaching duties on receipt		$1,500.00	Breaching duties on receipt
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$12,795.33	$3,027.00
Net award	$7,768.33
Total payable by Tenant to Landlord	$7,768.33

Order

Rick Kerse, Sally Kerse, Victoria Kerse must pay Laurence Pope And Aaron Nicholls As The Trustees Of The Samcro Trust, Owner Of Matakana Luxury Limited $7,768.33 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,000.00 () to Laurence Pope And Aaron Nicholls As The Trustees Of The Samcro Trust, Owner Of Matakana Luxury Limited immediately. 5120368, 5263340,4934178, 49407942

Reasons

Both parties attended the hearing by video on 9 July 2025.
The landlord has made two applications (5263340 on 14/05/25 and 4934178 on 08/07/24) for termination/possession, rent arrears, compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenants made two cross applications (5120368 on 24/12/24 and 4940794 4934178 on 15/07/24) for compensation, exemplary damages, refund of the bond and reimbursement of the filing fee.
The landlords’ termination/possession claim and the tenants retaliatory notice claim were heard by Adjudicator Brennan on 15 August 2024. The tenancy was terminated, and possession granted back to the landlords on 10 September 2024. The retaliatory notice claim was dismissed for lack of evidence to support the claim on the balance of probabilities.
The tenants appealed the 15 August 2024 termination Order to the District Court and sought a stay of enforcement proceedings, which they were granted. Consequently, the eviction order was stayed, and the tenants continued living at the Matakana property. The appeal was heard by Judge David J Clark on 17 January 2025 and a judgment issued on 28 January 2025. The Tribunal’s termination/possession order was upheld by the Court and the tenants were given 4 weeks from the date of the judgment to move out of the rental premise, being 25 February 2025. The retaliatory notice claim was not part of the appeal.
One of the findings of the District Court was that “because of the tenants daughter’s medical issues, if the remaining claims of the tenants relate to alleged breaches affecting her well-being, then an in-person hearing will be needed” 1 .
I have been tasked with hearing the remaining substantive matters on all four applications. Background
The tenants built a purpose-built house on the back of their Matakana property for their daughter Hannah, who has cerebral palsy and uses a wheelchair. They also constructed five sheds at the front of the property to rent out on Airbnb to top up their pension and to provide an income for their daughter’s future. This development was done through a company Mr Kerse set up.
When Covid-19 hit, and Auckland went into rolling lockdowns, there were materials shortages that delayed the build and the tenants found themselves with 1 Kerse & Ors v The Samcro Trust [2025] NZDC 781 at [38]. 5120368, 5263340,4934178, 49407943 a business that had taken out a significant loan and were facing loan repayments and interest penalties that they could not pay.
Mr Kerse’s business entered into a sale and purchase agreement with the landlords that went wrong, and the Matakana property ended up being subject to a mortgagee sale that is now the subject of proceedings in the High Court of New Zealand.
The landlords agreed to enter into a periodic residential tenancy agreement with the tenants, commencing on 9 January 2024
In addition, the landlords engaged the tenants as contractors to run the five sheds as an Air b n b, for which there was a verbal agreement and no written contract. This business relationship between the tenants and the landlord has at times blurred the lines between the business relationship and the residential tenancy.
Initially the landlords engaged a property management company to manage the tenancy so that the business relationship between the parties would be kept separate from the tenancy relationship. This did not work well for any of the three parties, so the property management company ceased managing the property on 6 June 2024. At that time the landlords took over the management of the tenancy.
On 10 June 2024, the landlords served the tenants the notice to terminate. It was sent by way of email to the email address recorded as the address for service in the tenancy agreement. The tenants received the notice. The notice was served pursuant to s 51(2) giving the tenants 90 days’ notice to vacate.
The landlords served a second notice on the tenants on 17 June of 2024. The second notice relied on s 53 of the RTA, giving the tenants 14 days’ notice to terminate the tenancy, on the grounds the landlord wished to have access to the property for contractors to undertake work.
The tenants were extremely distraught at losing their home and having to uproot and relocate their daughter, who has special accommodation needs that are challenging to find. The tenants have confirmed that they have had to relocate to Wellington to find suitable accommodation for her.
On 27 February 2025, the landlords sought to enforce the eviction order of the District Court, without a bailiff. The tenants remained in the premise until 6 March 2025. When they moved out, they treated the premise as if they were the sellers of the property that had been subject to a mortgagee sale and stripped a significant number of fixtures, fittings and chattels from the premise. Both issues gave rise to the second applications by both parties. 5120368, 5263340,4934178, 49407944

LANDLORDS CLAIMS

How much is owed for rent?

The tenancy commenced on 9 January 2025, pursuant to a tenancy agreement that was signed by the parties on 12 March 2025. The tenancy ended on 6 March 2025.
The tenants claimed they had overpaid rent by $7,000.00 and wanted an order for the landlord to repay those monies. This claim is based on the fact the landlords, without consent, transferred $13,000.00 of contractor’s fees owed to the tenants for the Airbnb management of the sheds, under the parties business arrangements that had nothing to do with the residential tenancy and the tenants. I do not have any jurisdiction to address this business/contract dispute between the parties and cannot comment on the legality of taking money owed to tenants under a separate and distinct business contract and applying it to the tenants residential rent ledger without their consent. This is a matter for the tenants to address through the Disputes Tribunal. I noted that had the landlords not made these deductions from their contractor’s fees owing, their rent arrears would have been $13,000.00 more.
The tenants argued that the tenancy agreement states that despite the tenancy commencing on 9 January 2024, the tenancy agreement records that the first rent payment was not due until 22 March 2024, and that means they could live rent free at the premise from 9 January 2024 to 22 March 2024.Therefore, they did not pay any rent for that period.
The landlords argue that: a. The mortgagee sale was transacted on 21 December 2023 but the title was not manually updated by LINZ until 9 January 2024.Therefore, the tenants had lived rent free in the premise they no longer owned, from 21 December 2023 to 8 January 2024; b. The tenants knew from the contractor reconciliation sent to them in January, February and March 2024 that the landlords had deducted the following monies from their contracting fees and applied them to the tenancy ledger: i. 22 February 2024 ($9,000.00), 1 March 2024 ($2,000.00) and 15 March 2024 ($2,000.00); and ii. A further $2,000.00 deduction was made in March 2024 to cover the bond (which the landlords say had been reduced from $4,000.00 to $2,000.00 in recognition of the financial duress the tenants were under at that time); c. Because the money from the business relationship had been transferred to the rent ledger to clear the rent arrears, there was no need for the tenants to commence paying rent at $1,000.00 per week until 22 March 2024. The 5120368, 5263340,4934178, 49407945 landlords thought this gave the tenants time to figure out how they were going to cover the rent and to explore if they were eligible for any government support.
The tenants could not provide any evidence to support their contention that the parties agreed they could live in the premise rent free until 22 March 2024 and I am satisfied on the balance of probabilities there was never such as agreement. I prefer the landlord’s explanation as to how the first rental payment date recorded in the post-dated and signed tenancy agreement came to be recorded as 22 March 2024.
The landlord provided rent records which prove the amount owing at the end of the tenancy. I award the landlords rent arrears of $4,285.71.
The tenants have not disproven this liability, nor have they provided sufficient evidence to prove on the balance of probabilities that they had overpaid rent. I therefore dismiss the tenants claims for overpaid rent of $7,000.00.

Did the tenants comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The tenants did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The tenant did not return the keys, but the landlord has not charged them for the lock changes it had to have undertaken by a locksmith after they vacated the premise.
There were significant amounts of chattels and hardware missing at the end of the tenancy. The tenants admitted to removing these chattels/hardware as well as some fixtures and fittings and stated they had a right to do so at the end of the tenancy, pursuant to their mortgagee sellers rights (items such as front door handle, pool pump, clothesline, interior doors and hardware, draws and rails in wardrobes, dishwasher, oven, window shutters, curtains and curtain rails and a remote etc). The tenants stripped this chattels/hardware at the end of the tenancy, and not as at the date the landlord took possession of the property after the sale had been transacted. The tenants had no legal right to take the chattels at that point as they were subject to a tenancy agreement that had been on foot from 9 January 2024 to 6 March 2025, over twelve months post Matakana Sheds Ltd.’s sale to the landlords having been complete. The landlords have not 5120368, 5263340,4934178, 49407946 charged the tenants for replacement of these chattels, fixtures and fittings, only for the costs of reinstalling new chattels, fixtures and fittings.
The amounts ordered are proved.

Are the tenants responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The following damage was caused during the tenancy: a. The stripping of fixtures and fittings (such as shower heads, kitchen mixer, bathroom cabinetry) the tenants confirmed they had deliberately taken as part of what they saw as their mortgagee sale rights; b. Damage to the property from a leak in the wall from the fixtures and fittings being removed without care for the foreseeable water damage; and c. Water pump disconnected; 5120368, 5263340,4934178, 49407947 d. Gas califont disconnected; and e. Water blaster disconnected.
The damage is more than fair wear and tear, and the tenants have not disproved liability for the damage as they confirmed they had intentionally caused this damage.
The amounts ordered are proved. Again, I note that the landlords have only charged for the labour costs involved in reinstating fixtures and fittings and remedying the water damage and have not charged the tenants for the costs of replacing the fixtures and fittings.
I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.

TENANTS CLAIMS

Did the landlords enter the premise without order of the Tribunal?

The tenants gave evidence that Mr Pope, and some of his colleagues, entered the premise without consent 27 February 2025 and tried to unlawfully evict them without the required Tribunal Orders and without the services of a bailiff or the Police issuing a trespass notice and requiring them to vacate the premise.
Section 63 of the RTA states: (1).No person shall enter into possession of any residential premises in the occupation of a tenant except with the consent of the tenant or pursuant to an order for possession made by the Tribunal and duly enforced in accordance with section 106. (2).Notwithstanding anything in section 57 of the Crimes Act 1961, every person who, otherwise than pursuant to a possession order duly enforced in accordance with section 106, enters onto any land or into any land, being residential premises to which this Act applies, for the purpose of taking possession of that land or building without the consent of the tenant commits an offence and is liable on conviction to a fine not exceeding $3,000.
The tenants gave evidence that Mr Pope, and some of his colleagues, entered the premise without consent 27 February 2025 and tried to unlawfully evict them without the required Tribunal Order in breach of s63 of the RTA.
On 15 August 2024, the Tribunal terminated the tenancy and granted back to the landlords on 10 September 2024. 5120368, 5263340,4934178, 49407948
A stay of enforcement proceedings was granted to the tenants that delayed the enforcement of the Tribunal’s 15 August 2024 termination/possession order until after the District Court had heard the tenants appeal.
The appeal was heard by Judge David J Clark on 17 January 2025 and a judgment issued on 28 January 2025. The judgment upholds the Tribunal’s 15 August 2024 termination/possession order, removes the stay of enforcement proceedings and gives the tenants 4 weeks’ notice from the date of the judgment to move out of the rental premise by 25 February 2025.
The evidence proves on the balance of probabilities that the landlords possessed the Tribunal Order necessary to give it the legal right to have the tenants evicted on 26 February 2025. The Tribunal’s 15 August 2024 order was enforceable from 26 February 2025, as modified by the District Court on 28 January 2025.
However, a landlord may not enter the premise during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A RTA.
The landlords submits: a. Mr Pope attended the property expecting it to be vacant, in accordance with the 28 January 2025 District Court judgment that required the tenants to have vacated the premise and given vacant possession back to the landlord on 25 February 2025; b. Mr Pope knocked on the door and when there was no answer, he went around the back of the premise and found the back door open; c. Mr Pope entered the house thinking it was vacant and had been left unsecured; d. Mr Pope was shocked to find Mr Kerse was in the hallway and he asked why the tenants were still there when the District Court had given possession back to the landlord from 26 February 2025; e. Mr Pope got a lock smith to change the locks and tried to find out when the tenants were moving. When they said they would vacate soon. Mr Pope gave him the keys to the property; and. f. The landlords had an eviction order giving it vacant possession of the property on 26 February 2025 and Mr Kerse had not negotiated an extension to the four weeks’ notice granted by the District Court.
A landlord can have a tenant that is refusing to comply with an eviction order granted by the Tribunal by obtaining an eviction warrant and getting a bailiff to 5120368, 5263340,4934178, 49407949 accompany it to the premise to evict and trespass the over staying tenant(s), thereby enforcing the Tenancy Tribunal possession order. However, the landlord cannot simply remove the overstaying tenant themselves.
Mr Kerse says Mr Pope came into the premise with four people around 8am on 27 February 2025. He says these four people were Mr Pope, his girlfriend that was filming the encounter, Aaron Nicholls, Tim Pence and Tom Almark. He says Mr Pope was banging on the door and on all the walls until he got to the back of the house and then he went into Mr Kerse’s disabled daughter’s bedroom and woke her up and then threw a trespass notice into Mr Kerse’s hands. Mr Pope then let other people in and handed Mrs Kerse a trespass order in the kitchen
He says the four persons remained at the premise until around 11:30am and severely traumatised the Kerse’s. He stated that Tom was saying, “get yourself a toothbrush and fuck off” and “fuck off” and “there is a van down the road and you can put your stuff in it”. Mr Pope denies these comments were made.
Mr Kerse says his daughter was severely traumatised by this event as she cannot get out of bed by herself, had strange men in her room while she was still half asleep and she has had to counselling as she is afraid of someone she doesn’t know bursting in her room again when she can’t get out of bed without assistance. Ms Kerse’s carer as called to come while Mr Pope and his colleagues were at the house as Ms Kerse was so traumatised.
Mr Kerse said they had made best endeavours to find somewhere to live and have had to relocate to Wellington as they have not been able to find suitable accommodation to meet Ms Kerse’s disability needs. For these reasons, he says he had requested an extension but it was denied. He felt he was between a rock and a hard lace as he could not just move Ms Kerse to a motel or the like.
I find the landlords have committed an unlawful act by bursting into the premise and trying to intimidate the Kerse’s into vacating the premise without obtaining an eviction warrant and being accompanied by a bailiff to trespass the tenants to enforce the modified Tribunal’s 15 August 2024 eviction order .
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I find it just to require the landlords to pay $1,500.00 exemplary damages (the maximum) because I am satisfied that the landlords committed the unlawful act intentionally, when they entered the premise on 27 February 2025 and tried to evict the tenants because: (a) The landlords ought to have reasonably known they could not enter the premise without the consent of the tenants or by having given the tenants 5120368, 5263340,4934178, 494079410 written notice of their intention to inspection the premise to see if the tenants had moved out. They would have known they could not evict the tenants and that they required an eviction warrant and the services of a bailiff to trespass the tenants and evict them. For a small sum, they could have and should have applied for enforcement support and an eviction warrant an they chose to try and intimidate the tenants to leave instead. (b) The effect of the unlawful act on the tenants of the trespass into their home without warning has been significant as they were all traumatised and this was more so for Ms Kerse with her significant disabilities and special needs, of which the landlords were well informed; and (c) It is in the interests of the tenants against whom the unlawful act was committed to receive a penalty payment from the landlord for this significant breach of the landlords’ obligations not to unlawfully enter the premise; and (d) It is in the public interest to penalise a landlord for such breaches as outlined above. See section 109(3)(a) to (d) of the RTA. Did the landlords breach the tenants’ quiet enjoyment of the premise?
Rick Kerse claims the landlord has harassed them.
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
The RTA further confirms that contravention of section 38(2) in circumstances that amount to harassment of the tenant, is declared to be an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However, Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person. 5120368, 5263340,4934178, 494079411
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
The tenant confirmed that the basis for this claim was the following seven incidents: Incident 1
The tenants say the landlord came and removed the shed, without notice to the tenants, that had been purchased by the landlords for the storage of items for the Airbnb.
The tenants had already taken these items into one of the units and they contacted the Police when the landlords tried to move the shed as the landlords should not have been on the property rented by the tenants without notice..
The tenants confirmed that they were not given notice the landlords were coming to do this. The landlords dispute this and say they sent a text the day before to say they were coming to shift the shed and Mr Kerse told them not to come. Further, the landlords say Mr Kerse had asked for the shed to be removed as the Kerse’s were refusing to continue to manage the Airbnb business for the landlord after they received notice terminating their tenancy. Additionally, the landlords say they had the right to remove it, as requested, as it was on the exterior of the property.
Section 48(7) of the RTA confirms that the restrictions on the landlords entry rights do “not include land or facilities”.
In this case, I am not of the view that the actions of removing the shed from the land rented by the tenants can be deemed to be harassment based on the definitions above. This claim is dismissed because the tenants have failed to provide evidence to prove it on the balance of probabilities. 5120368, 5263340,4934178, 494079412 Incident 2
The tenants claim that, on 27 September 2024, one of the landlords’ contractors was abusive when Ms Kerse and her carer wanted to go out. They say the contractor would not move his car. M Kerse recorded the incident and the Kerse’s reported the incident to the Police. This complaint was acknowledged by the Police on 30 September 2024.
Mr Kerse says that his daughter and her carer were so traumatised they didn’t go out that day. Further, they claim the carer is of Irish descent and the contractor was telling her to go back to Ireland and made other racially abusive comments.
The tenant claims he couldn’t get in contact with Mr Pope as he stopped responding to any communications by this point of their relationship.
The tenants say the contractor said the tenants were “trespassing” and “should get the hell out of there”.
The landlords claim they do not know anything about this incident, it was never reported to them, and they did not instruct their contractor to be rude and offensive.
The landlords cannot be held liable for acts by their contractors that are outside of the scope of work the contractor was engaged to undertake and were denied the opportunity to address the behaviour as the tenants never raised it with the landlord.
I am not of the view that the actions of contractor can be deemed to be harassment by the landlord in this one-off incident, based on the definitions above. This claim is dismissed because the tenants have failed to provide evidence to prove it on the balance of probabilities. Incident 3
The tenants say the laundry required to run the Airbnb for the landlord was taking up to much room in the two bedroom house they were renting and they asked for a storage shed for the linen and other materials for ages. They say they first requested this in December 2023. Mr Pope says he thought it was best to build something on site but eventually Mr Kerse found a shed built out in Henderson and Mr Pope purchased it, on 8 April 2024, for Airbnb related storage.
Mr Pope says that he had no control over how Mrs Kerse wanted to run her commercial Airbnb and that she could store the fans, linen etc . where he chose and that it was part of the commercial contracting relationship Mr Pope had with the Kerse’s and had nothing to do with the residential tenancy relationship
I am not of the view that Mr Pope had to provide a shed or other storage for the Airbnb supplies, as part of the residential tenancy relationship, nor that Mr Pope was harassing the tenants because they choose to enter into a commercial contracting arrangement with Mr Pope to let out the five sheds as an Airbnb 5120368, 5263340,4934178, 494079413 business. This claim is dismissed because the tenants have failed to provide evidence to prove it on the balance of probabilities. Incident 4
The tenants say that, at the end of September 2024, they were harassed by the contractors addressing power issues for the water pumps for the five sheds after the tenants informed Mr Pope they no longer wanted to rent out the sheds through Airbnb for him.
The power from the main house was being used to run the water pumps for the Airbnb and after the tenants ceased running this operation, they asked for compensation for the additional power being used and when they did not get it the interfered with the water pumps when Airbnb guests were staying there. This meant the sheds had no toilet and shower or water at all and was creating safety issues and customer service issues for Mr Pope.
Mr Pope engaged a contractor to run a power lead from another property he owned to run the water pumps for the five sheds. Mr Pope confirmed the tenants continues to pull out the lead and interfere with the water service to the sheds in retaliation for the termination notice the landlords and issued to the Kerse’s and Mr Pope’s refusal to pay for chattels Mr Kerse says Mr Pope had agreed to purchase.
Mr Pope’s partner recorded event on the phone. This shows they did not enter the tenants premise, they simply went there to turn the power to the water pump on again as it was a necessary utility for the Airbnb guest.
- turned the power on. Sally cam out and turned it off again. Sally turned the power off again when it was running off another units power- End Sept 2024. Gave LL notice he was going to do this and wanted the money that was owed for power that was owed for the chattels he had purchased.
Section 48(7) of the RTA confirms that the restrictions on the landlords entry rights do “not include land or facilities” and section 48(2)(a) of the RTA also allows for a landlord to enter a premise in an emergency.
I am not of the view that Mr Pope had to seek the tenants consent to address the water crisis for Airbnb guests Mr Kerse created in retaliation for issues he had with Mr Pope. This was a vexatious act of retribution, and it would not be in the interests of justice to award compensation for such acts. This claim is dismissed because the tenants have failed to provide evidence to prove it on the balance of probabilities. Incident 5
The tenants say that Mr Pope’s colleagues and contractors trespassed on the property the tenants were renting as they carried out work on the sheds and used the common driveway during the month of September 2024. 5120368, 5263340,4934178, 494079414
The tenants claim Casey Greenfield and Tim Pence were trespassed because of how they kept turning up to do stuff on the sheds. He cited instances such as them coming on to the property to do things with water pump when there was a fault as the water pump was on the boundary to the property and was part of the main house legal title. He stated they also came into front house yard to do stuff and that “people would turn up without notifying us”.
The landlords denied this and said they made sure the tenants were also notified that someone was coming to work at the property as the relationship was badly strained by this time because of the termination notice being upheld by the Tribunal and appealed and stayed by the tenants. Mr Pope said his personal assistant (PA) took over all communications with the tenants and the only time Mr Pope went there was in September 2024 to do an inspection. He says subsequent inspections were done through his PA.
The tenants have failed to prove this claim on the balance of probabilities and is therefore dismissed. Incident 6
The tenants say they were harassed by the 14-day notices the landlords issued in relation to rent arrears they say they did not owe and the landlords never provided rent summaries to prove they owed.
A landlord is within its rights to issue 14 day notice for any breaches of the tenants obligations. This is not harassment. If the basis of the 14 day notices turn out to be disproven by the tenant, it is still not an unlawful breach of the tenant’s quiet enjoyment or harassment.
The tenants have failed to prove this claim on the balance of probabilities and is therefore dismissed. Incident 7
The last incident relates to the trespass by Mr Pope and his colleagues on 27 February 2025.
This incident has been addressed as an unlawful entry claim.
Section 109E of the RTA prohibits the Tribunal from holding a landlord liable to more than 1 pecuniary penalty order for the same conduct. This claim is therefore dismissed. 5120368, 5263340,4934178, 494079415 Did the landlords fail to appoint an agent when they were out of New Zealand for longer than 21 consecutive days?
Rick Kerse claims the landlord has been overseas for longer than the Act permits without appointing an agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.
The tenants says Mr Pope was out of New Zealand for more than 21 days in May 2024 and failed to appoint an agent and/or to inform them of who the new agent was.
The landlords proved the premise was being managed by a property management company called Home James until 6 June 2024 and they managed the premise after this date. Mr Pope also confirmed that Home James informed the tenants that it was no longer managing the property from 6 June 2024, gave the tenants the new bank account for rent payments to be made into and proved the tenants made first payment to the landlords bank account on 8 June 2024.
Mr Pope confirmed he was in Europe from 4 May 2024 to 25 May 2024.
Mr Pope says that he had served a 90-day notice on the tenants on 10 June 2024, ending the periodic tenancy, so there was no doubt who the landlord was at that point.
The tenants have failed to prove this claim on the balance of probabilities, and it is therefore dismissed. Did the landlords fail to lodged the bond with the Bond centre within 23 working days from receipt?
Rick Kerse claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlords confirmed, on 22 February 2024, they moved $2,000.00 to cover the bond to the rental account from the monies they owed the tenants as part of 5120368, 5263340,4934178, 494079416 the commercial contract they had with the tenants to manage the five sheds through Airbnb.
This bond was never recorded in the rent ledger by Home James and Home James did not lodge the bond with the Bond Centre until. 17 May 2024. This date is recorded on the MBIE receipt for the bond.
The only place the deduction shows in a reconciliation the landlords did at the end of February 2024 for the tenants as contractors for the Airbnb contract.
I am satisfied the bond was not lodged with the Bond Centre within 23 days after the landlord received it, being 28 March 2024. In fact, it was not lodged for a further 50 days.
I find the landlords have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I find it would be just to require the landlords to pay a sum of $1,500.00 in exemplary damages(the maximum) because: a. The landlord intentionally held on to the bond and did not submit it to the Bond Centre in the required timeframe; b. The tenants are entitled to rely on the Bond Centre protecting the bond money that has been placed in it on trust for the tenants’ benefit, unless it is proven the tenant owes the landlord a debt that both parties agree can be paid by the Bond Centre to the landlord or on order from the Tribunal. The tenants’ money was not protected by the Bond Centre (a third independent party) for 45 days past the 23-day timeframe, and it should have been; c. It is in the interests of the tenants to receive exemplary damages for the landlords breach; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations pay the bond received into the Bond Centre promptly for the protection of both parties’ interests. Did the landlords require the tenants to pay more than two weeks rent in advance or rent before the already paid rent expires?
The tenants claim the landlord has required more than two weeks rent in advance or rent before the already paid rent expires based on the $13,000.00 the landlords deducted from the tenants Airbnb commercial contract earnings and 5120368, 5263340,4934178, 494079417 put into the residential tenancy ledger on 22 February 2024 ($9,000.00) and $2,000.00 on 1 and 15 March 2024.
A landlord must not require a tenant to pay more than two weeks in advance or rent before the already paid rent expires. See section 23(1)(a) of the RTA.
A landlord also must not require the payment of any rent before the expiry of the period for which rent has been paid already. Section 23(1)(b) RTA.
Breaching one of both of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 23(4) and Schedule 1A Residential Tenancies Act 1986.
The landlords proved that they moved the $13,000.00 across into the tenants rent ledger as the property had been sold to them from 22 December 2023 and the agreement was the tenants would rent the premise at $1,000.00 per week after the sale had been completed. The tenants had not paid any rent until 22 March 2024, so the landlords had moved this money to cover the rent arrears, albeit without the tenants consent, blurring the lines between the commercial contract between the parties for running the Airbnb and the tenancy relationship.
I am satisfied the tenants were never required to make rent payments of more than two weeks in advance at any time during the tenancy and that these unconsented transactions sit out of the Tribunal’s jurisdiction to comment on or address.
I find the tenants have failed to prove this claim on the balance of probabilities, and it is therefore dismissed.

Was the weekly rent charged by the landlords in excess of market rates?

The tenants claim the landlord required them to pay rent in excess of the market rent set by Tenancy Services.
The sales and purchase agreement terms for the property was discussed between the parties in September 2023 and at that time the pares agreed that after the landlord had purchased the premise from the tenants’ they would continue to rent the two-bedroom house at $1,000.00 per week and both parties agreed that this was the upper rental rate for the area but was a fair rental rate in all the circumstances. The tenants gave evidence they were prepared to pay that rental rate for a long-term rental arrangement. They also gave contradictory evidence that they had agreed to the rental rate as they were told that they had to pay the amount requested “or get out”. The landlords refuted that they told the tenants to pay $1,000.00 per week or get out and states the tenants readily agreed to pay $1,000.00 and the first time they complained about the rental rate was in relation to these proceedings. 5120368, 5263340,4934178, 494079418
The tenancy commenced on 9 January 2024 at the agreed weekly rental rate of $1,000.00 per week.
The tenants state that this rent had been set above market rate, that they knew this when they signed the tenancy agreement but agreed to it as they wanted to remain living at the premise long term as it had been modified to accommodate their disabled daughter’s special needs. The tenants’ relationship with the landlord soured after they were issued with a notice terminating their tenancy in June 2024 and they have subsequently taken issue with the rental rate they were charged during their shortened tenancy.
The tenant has applied to the Tribunal seeking an order for reduction in the rent under s 25 of the RTA.
Section 25 of the RTA provides: Market rent (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (2) .... (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents [(other than income-related rents within the meaning of [[section 2(1)]] of the [[Public and Community Housing Management Act 1992]])] for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant. (4) An order made under this section shall take effect on and from a date to be specified in the order, which may be the date of the order or any earlier or later date, but being no earlier than the date of the application for the order and no later than 30 days after the date of the order. 5120368, 5263340,4934178, 494079419
The are three questions arising for determination under s 25 of the RTA. First, what a market rent would be for the premise. Second, whether the rent charged is substantially above the market value. And, if so, thirdly, what the rent should be.
Each of these three questions are analysed separately below.

What would a market rent would be for the premise?

The landlord produced two rental appraisals carried out by property management companies that operate in the area.
The 21 January 2024 rental appraisal from Home James states the market rental rate for the premise is between $860.00 and $980.00 per week. The 20 June 2024 rental appraisal from Ray White states the market rental rate is between $900.00 to $1,000.00 per week.
The tenants say that the Tenancy Services data for all properties in the area show that the lower quartile for rental rates in the area sits at $650.00 per week, the median rents sit at $825.00 per week and the upper quartile for the area is $956.00 per week. No other market data was provided by the tenants.
The tenants confirmed that although this is a two-bedroom property that is not flashy, it has been specially designed to accommodate a person with limited mobility and has special features such as wide doors etc. They also say that neither of the property management companies that provided rental appraisals for the premise had actually visited it before providing the written appraisals and that the accuracy of these appraisals should therefore be questioned.
The landlords stated it had shown the property management companies the information and photographs it had received about the property as part of the sales and purchase process and described the special characteristics of the premise to these companies.

Was the rent substantially above the market value?

Market rent is the amount a landlord might reasonably expect to receive, and a tenant might reasonably expect to pay, for a tenancy. It needs to be similar to the rent charged for similar properties in similar areas.
The Tenancy Services market rent data comes from bond information held by Tenancy Services for non-government owned properties and provides an indication of the non-government rental market based on bonds lodged. This overall data for 2024 shows that the rent payable by the tenants was between $350.00 and $4.00 per week higher than the lower and higher market rates for the area. No other market data was provided by the tenants. 5120368, 5263340,4934178, 494079420
The market data from the property management companies shows the tenants were paying the upper end of market rental rates for a modified premise that met the specific and special needs of their family.
I conclude from the evidence that it is more likely than not: a. The tenants accepted the $1,000.00 per week rent when they negotiated the sale and purchase agreement to purchase the property from the landlord in September 2023 to December 2023; b. The tenants accepted the $1,000.00 per week rent again when they negotiated and signed the tenancy agreement in March 2024; c. The tenants chose to challenge the market rental rate they had agreed to twice during separate negotiations in retaliation for having their tenancy terminated by the landlord in June 2024 and had they stayed renting the premise would not have challenged the weekly rental rate they were paying; d. The landlord had shown the property management companies the information and photographs he had about the property as part of the sales and purchase process and that this information was used by these companies to undertake the rental appraisals the landlord relies on; e. The overall market rental information from tenancy services covers a wide array of rental premises in that area and is not especially helpful in assessing the market rental rates for a two bedroom premise in that area and taking into consideration the special modifications. Data on comparable houses from listings on Trade Me or from real estate/property management companies in the area would have provided a better comparison to the rental appraisals produced by the landlord but none were produced.
For all of these reasons I find that on the balance of probabilities, the evidence produced by the parties proves the market rent for this premise was between the lower quartile of $860.00 and the upper quartile of $1,000.00 per week.

What the rent should be?

The tenants paid $1,000.00 per week from when the tenancy commenced on 9 January 2024 until the end of the tenancy on 6 March 2025. The rent was nit increased at the end of the first 12 months of the tenancy.
I find that on the balance of probabilities, the evidence supports a finding that the rental rates being charged by the landlord were commensurate with market rental rates for the premise, albeit at the upper end of the market rental rates.
Therefore, the tenants claims for an order reducing the rent under s 25 of the RTA is dismissed for lack of sufficient evidence to prove it on the balance of probabilities. 5120368, 5263340,4934178, 494079421

Did the landlords fail to keep proper business records?

The tenants claim the landlord has not kept records of rent and bond paid. Urther they claim right though until the hearing of 20 May 2025, they have been asking for rent summary, they have requested one on 10 different occasions and never got these records.
A landlord must keep proper business records showing details of all rent payments and any bond paid by the tenant. See section 30(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. See section 30(2) and Schedule 1A RTA).
The landlords have produced a rent summary that records the rent payments made by the tenants and the three rent payments taken from the tenants commercial contract income and transferred without the tenants consent to the rent ledger. It does not record the bond payment. However, the parties have produced reconciliation for the commercial contract payments made to the tenants and these reconciliations record these transactions clearly.
The landlords proved they got a printout sent to the tenants by Homes James when the tenants requested it. The landlords produced an email to Home James dated 29 August 2024 asking for rent summaries to be sent to the tenants and that Home James sent these by email on 5 September 2024. The landlords proved the tenants were given two summaries, one from My Rent and one from Homes James.
There is an email dated 25 September 2024, from the tenant asking the landlords for the latest reconciliation. I take that to be a request made under the commercial contract arrangement and not the tenancy relationship.
I am satisfied the evidence proves the landlords kept proper business records.
I find the tenants have failed to prove this claim on the balance of probabilities, and it is therefore dismissed. Did the landlords give false evidence to the Tribunal to deliberately misled it in breach of s111 of the RTA?
Section 111 of the RTA confirms that “every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years who, after promising to tell the truth pursuant to section 97(2), makes any assertion as to a matter of fact, opinion, belief, or knowledge knowing that assertion to be false and intending thereby to mislead the Tribunal. 5120368, 5263340,4934178, 494079422
The tenants state the landlords have given false evidence to the Tribunal about the rent arrears being claimed by the landlords when they know that the information provided to the Tribunal is false.
The information the landlords have provided to the Tribunal, in relation to the rent arrears owing, have been proven to be correct.
I find the tenants have failed to prove this claim on the balance of probabilities, and it is therefore dismissed.

OTHER CLAIMS

Reimbursement of filing fees

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
Because the landlords have wholly succeeded with its claims, I must reimburse the filing fee.
Because the tenants have not been wholly or substantially successful with their claims I dismiss their claim for reimbursement of the filing fee. Name suppression
The tenants’ have applied for non-publication of their names and identifying details.
The tenants have not wholly or substantially succeeded with their claims.
I consider that given the publication of the various disputes between the parties, naming the tenants, in the media and the prior Tribunal and District Court proceedings that the tenants names are already in the public domain and the public has an interest in the outcome of this Tribunal hearing.
I also consider that publication of the tenants’ names is in the public interest or justified because of the tenants conduct in this matter, in that they have stripped the fixtures, fittings and chattels out of the rental premise when they had no legal right to do so at the end of the tenancy. Any right they may have had to undertake this level of damage to the premise as sellers under a mortgagee sale ended after they entered into a tenancy agreement with the landlord, post the completion of the sale and purchase process and the landlords owning the property. 5120368, 5263340,4934178, 494079423
The tenants’ application for name suppression is dismissed for the reasons set out above.

At a glance

At a glance

Award balance

Claims & awards

Order

Reasons

LANDLORDS CLAIMS

How much is owed for rent?

Did the tenants comply with their obligations at the end of the tenancy?

Are the tenants responsible for the damage to the premises?

TENANTS CLAIMS

Did the landlords enter the premise without order of the Tribunal?

Was the weekly rent charged by the landlords in excess of market rates?

What would a market rent would be for the premise?

Was the rent substantially above the market value?

What the rent should be?

Did the landlords fail to keep proper business records?

OTHER CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

LANDLORDS CLAIMS

How much is owed for rent?

Did the tenants comply with their obligations at the end of the tenancy?

Are the tenants responsible for the damage to the premises?

TENANTS CLAIMS

Did the landlords enter the premise without order of the Tribunal?

Was the weekly rent charged by the landlords in excess of market rates?

What would a market rent would be for the premise?

Was the rent substantially above the market value?

What the rent should be?

Did the landlords fail to keep proper business records?

OTHER CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions